The Volokh Conspiracy -

[David Post, March 27, 2009 at 10:40am] Trackbacks

Free Software and Copyright Law:

Yesterday I attended a talk given by Richard Stallman here at Temple, on copyright law's increasing dis-utility (and Stallman’s proposals for reform of that law).

Stallman, needless to say, is a fascinating character. He’s already a major figure in the history of computing and computers, and it may turn out that he’s a major figure in the history of the production of creative works more generally – time will tell about that. Twenty-five years ago, he had a ridiculous – borderline insane, really – idea: “free software” ("free," as he takes pains to remind us, in the sense “free speech,” not “free beer”). Large numbers of people could collaborate to produce functioning and efficient software systems that would be outside of anyone’s proprietary control? Why would anyone do that? Where’s the incentive? Who’s going to work “for free”? Who would be in charge? How could they all possibly make it work on the technical side?

Of course, he managed to pull it off – not on his own, to be sure, but he surely deserves a great deal of the credit for the success of open source software, software which now dominates a number of important segments of the computer universe and which is becoming more and more central to the business models of even the giants in the industry (e.g., Sun Microsystems and IBM).

I have great admiration for men and women who manage to pull off things that are borderline insane when viewed against the conventional wisdom; it’s why I like Jefferson so much. They’ve earned the right to have their crazy ideas taken seriously – no small feat.

Stallman currently has copyright law directly in his sights. Like many people – myself very much included – he has concluded that copyright law is broken, in fundamental ways, that it no longer functions to encourage the production of creative works, but in fact has quite the opposite effect, serving primarily to stifle creative activity. I couldn’t agree more with him on that. He’s got a specific proposal for changes in the law. I’m going to wait until he commits those to writing before I comment specifically about them – I’m not entirely comfortable relying on my memory of his talk as a basis on which to comment. But the basics were these: much shorter copyright term for all works (in the neighborhood of 10 years or so, rather than the insane life+70 we now have), and a division of works into various categories that would get different levels of protection, from low to high: functional works, works of opinion and reference, and works of entertainment.

The devil’s always in the details, and I’ll have more to say about this proposal when I see and understand the details a little better. But here’s what’s really interesting about all this. Open source software – paradoxically, or perhaps only ironically – is entirely dependent on copyright for its legal foundations. The entire open source system relies on a complex licensing scheme (of Stallman’s invention), under which open source software is distributed under a special license that (a) gives all users certain rights (to use, copy, and modify the software) and (b) requires that any re-distribution include the same provision giving users those rights. It’s a kind of recursive non-proprietary licensing algorithm – quite ingenious.

What many people don’t understand about open source licenses is that they can be (and are) enforced by asserting a claim of copyright infringement against violators, not merely a claim for breach of contract. That is, if you take open source code and copy it and modify it and then re-distribute it without the provisions providing your users with the rights set forth in the license that you received, you will be infringing the copyright in the underlying work (in addition to breaching your contract). That principle was reaffirmed recently by the Federal Circuit, in the Jacobsen v. Katzer case, and it is of fundamental importance to the whole open source movement. Why? Because a breach of contract action is virtually worthless as an enforcement device, while a copyright infringement action is a powerful weapon indeed. There are many, many reasons why this is so. In a breach of contract action, the plaintiff has the burden of establishing that there was a contract – no small task, when the licensee here could’ve picked up this software from any of a million different places, all around the internet. Who’s got a record of the “contract” that the defendant agreed to, and exactly where he/she agreed to it. And even if you establish a contract, your damages for breach of the contract are limited to the harm you suffered as a result of the breach – demonstrating that that’s more than negligible is going to be incredibly difficult. It makes a breach of contract action entirely ineffective as a means for enforcing the open source license. But copyright infringement’s another matter entirely. Once you show that the defendant copied/modified/re-distributed your work, the burden is on the defendant to show that he/she was authorized to do that by the copyright-holder. And there are statutory damages independent of actual harm to which you are entitled for copyright actions – now you’re talking serious money.

Stallman understands this thoroughly – though the vast majority of commentators on the open source movement have missed this point. I suspect that his ultimate aim is not merely to substantially weaken copyright (as in his proposal) but to eliminate it entirely, and I also suspect that he relishes the idea that he’s been using copyright law as the main weapon in the battle to destroy copyright law – another nice little recursive algorithm.

More on Free Software and Copyright:

As a follow-on to the discussion here about Richard Stallman's recent talk about reforming copyright law, and his objections to my use of the terms "free software" and "open source software" interchangeably, Stallman sent me the following message (which I reproduce here with his permission, and indeed at his request):

"I see you posted part of my message. Could you please post all of it? If you post just part, readers are likely to conclude that I had no other criticism and agreed with everything else."

Although I am not at all sure I agree that readers would be "likely to conclude" that he had no other criticism of my original posting, I'm posting the other parts of his message below. He continues:

"Did you change "open source" to "free software" in the original posting?"

That's an interesting one. Here's what I wrote back to him in response:

"No, I did not. I have several reasons for not doing so. First, I said what I said, and I'm uncomfortable (as a general rule) with going back and re-writing the history of the discussion -- among other things, the ensuing comments about the use of the terms "free software" and "open source software" would be incomprehensible to a reader if I changed the original posting that way. More significantly, I'm uncomfortable with the notion that you get to decide what the terms mean for others. I didn't use the terms incorrectly - I used them in a manner you disagree with. I've given you the opportunity to explain to my readers your disagreement, and they will decide for themselves whether they agree or not with your position. My job is to communicate with them as best I can, using the lexicon so as to make whatever point(s) I'm trying to make, and I don't think changing the original posting is the right move in that direction."

***************

Stallman's original message to me in regard to my original posting:

I am disappointed that you describe my work as "open source", because I disagree with that camp and I constantly struggle against the misinformation which labels my work that way. You might as well call my work "Republican". For instance, this sentence

"Stallman understands this thoroughly though the vast majority of commentators on the open source movement have missed this point."

is likely to lead readers to suppose erroneously that I am a supporter of the open source movement, when in fact I disagree with it fundamentally.

See http://www.gnu.org/philosophy/open-source-misses-the-point.html for an explanation of this disagreement.

Would you please replace "open source" with "free software" in this posting about my work?

". . . he has concluded that copyright law is broken, in fundamental ways, that it no longer functions to encourage the production of creative works, but in fact has quite the opposite effect, serving primarily to stifle creative activity."

But I did not say that. That is not what I think, and I don't say it either. This is because I reject the more basic supposition that encouraging the production of works is the sole or principal goal. I do support that goal, but I think it is less important than another desideratum: to respect the public's important freedoms to use published works.

I am willing to trade freedom for the benefit of encouraging production of works only when it is a matter of an inessential freedom (which, in the age of the printing press, it generally was).

I suspect that his ultimate aim is not merely to substantially weaken copyright (as in his proposal) but to eliminate it entirely,

I do not wish to abolish copyright; if I did, I would say so. I often speak with people who advocate abolishing copyright, and I tell them that I do not agree.

I remain am willing to trade inessential freedoms to encourage production of works, and there are freedoms which I think are still inessential and fit to be traded in this way. The proposal in my speech is based on that. It reduces copyright power by restoring to readers the essential freedoms, but it continues the copyright bargain in regard to other freedoms which are substantial in economic importance but not essential in my view.